Nez Perce Tribe and Idaho Rivers United Sue Forest Service

Forest Service failed to enforce their regulations on megaloads-

News release-

BOISE — Idaho Rivers United and the Nez Perce Tribe filed a joint lawsuit in federal court in Boise late this afternoon in order to stop the movement of megaloads along U.S. Highway 12 through tribal lands and the Clearwater-Lochsa Wild and Scenic River corridor.

The lawsuit charges that the U.S. Forest Service’s failure to stop a megaload from entering the river corridor was “arbitrary, capricious, (and) an abuse of discretion.” The Tribe and IRU are also seeking an injunction that would halt the megaload now in the river corridor and block transport of other megaloads until the federal agency completes a review of their impacts on the Nez Perce homeland and the federally protected Wild and Scenic River corridor.

“It’s incomprehensible that the Forest Service didn’t have the backbone to enforce its own rules,” said IRU Executive Director Bill Sedivy. “They’re sending a terrible message to anyone who would abuse rivers and forests, as well as important cultural and historic sites on our public lands.” Nez Perce Executive Committee Chairman Silas C. Whitman said the tribe had exhausted its avenues of diplomacy and outreach, but received no redress.

“The tribe is frustrated we have to take action in court to stop something that a court has previously ordered the Forest Service to actively regulate, but feel we have been left with no other option,” Whitman said. “Our action of filing this legal proceeding as well as our active protests on the highway to this transport was precipitated by the agency’s failure to do its job.”

IRU and the Tribe filed in federal court after an industrial moving company, Omega Morgan, trucked a massive load of General Electric-owned equipment past the Forest Service boundary Wednesday night and early Thursday morning. The 644,000-pound, 255-foot-long, 21-foot-wide load was parked at Syringa Thursday near Milepost 90, 16 miles into the Wild and Scenic River corridor.

In a letter sent Monday, Aug. 5, Nez Perce-Clearwater National Forest Supervisor Rick Brazell wrote to the company: “The Forest Service does not consent, approve or otherwise authorize Omega Morgan to transport the subject over legal loads on US Highway 12 between MP 74 and 174,” the Wild and Scenic corridor. “This load’s entry into the Wild and Scenic River corridor irreparably harms the experiences of the traveling and visiting public, as well as the cultural, historic and aesthetic values of these Wild and Scenic Rivers,” Sedivy said.

“This has been a sad week for Idaho. First, the Idaho Transportation Department, Omega Morgan and General Electric blatantly disregard the wishes and regulations of the Forest Service and ignored the wishes and concerns of the Nez Perce Tribe. Then, while it looks like Supervisor Brazell had the right idea, those of higher authority in the Forest Service didn’t have the will to enforce the agency’s own rules.”

The Middle Fork of the Clearwater and its tributary, the Lochsa, were among the first rivers protected under the Wild and Scenic Rivers Act in 1968. Idaho Sen. Frank Church championed the act, which also included among its first designations the Selway and Middle Fork of the Salmon rivers.

The Clearwater and Lochsa rivers were singled out for designation because of their scenic, recreational, cultural, historic and other unique values. “These rivers represent the embodiment of what the Wild and Scenic Rivers Act was meant to protect,” Sedivy said. “These rivers anchor cathedral-like forests that inspire awe, reflection and reverence. They are recreational Edens for fishermen, campers, hikers, hunters, bicyclists, history buffs, whitewater kayakers and rafters; and they are the cultural roots for the Nez Perce people.
“We have a responsibility to protect the Clearwater and Lochsa—the way we see them now and enjoy them now—for our children and for their children. The Forest Service shares that responsibility and should be leading the charge for protection.”

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Ralph Maughan

Dr. Ralph Maughan is professor emeritus of political science at Idaho State University with specialties in natural resource politics, public opinion, interest groups, political parties, voting and elections. Aside from academic publications, he is author or co-author of three hiking/backpacking guides.

24 Responses to Nez Perce Tribe and Idaho Rivers United Sue Forest Service

As I wrote before: Don’t look for the Feds to do anything. Recall that Obama’s job czar is the CEO of General Electric who owns the items being shipped. Now it goes to the third branch of government and we will now see how independent they are.

The tribe should not have to answer to anyone when it comes to their reservation. Would you like it if someone came and stole your ranch out of from under you, spit in your face, and told you to piss off?

I am 110% against the mega loads, but there is an easement in place for the Hwy, that goes through the reservation, the Hwy is owned by the US government, so it should be the US government, which determines what is ok to transport on that corridor, which would be the US Forest Service. This was addressed in the recent ruling that they do have jurisdiction over the Hwy corridor. As I said, I am 110% against these shipments, but for many reason, the road through the reservation is not one of them.

Clarification: The FS has authority to review the impacts to NF lands and to Recreational River status for that portion of the Middle Fork of the Clearwater – Lochsa Rivers designated under the Wild and Scenic Rivers Act. They don’t have authority on the Nez Perce Reservation (though they have some trust duties to the tribe on NF lands to accept their input and consider it in their decision-making regarding their primary federal land responsibilities. The Federal Highway Administration in conjunction with the states have authority over the entire stretch of Highway 12 for the mega-loads. The current one is only one of many in the future.

The problem IMHO is that the FS has kind of bungled this from the start, first saying they have no authority, then dinking around saying they need more time to study, even while all the work involving trimming back the vegetation, overhead relocation of utilities and the turnouts. Their interaction with the state highway department is either real cagey or real unsophisticated.

Actually, I think the FS is a little late to the party, and would not be surprised if Judge Winmill says something in a chastising manner to that effect in his rulings on the injunctive relief sought by the plaintiffs.

But in the end, this load is unlikely to be stopped. And, quite frankly, I don’t see the claims in the suit as being particularly strong.

WM, Just a question (because I am uncertain)…did the Supreme Court not say the US has total jurisdiction to regulate commerce within Native American reservations via the Constitution (Article 1, Section 8)? Does this not include easements? It seems like Idaho should have no jurisdiction to make this call, to me.

It has been a very long awhile since I studied this stuff. Maybe someone else has a better handle on this topic.

It is clear the United States has authority to deal with tribes as sovereign powers. Where a road easement exist for a US highway there is generally shared responsibility to maintain and operate it. That would seem to include state law enforcement, as a matter between the US government and the particular state. There is also a somewhat related federal law called PL 280 whereby states can assume law enforcement jurisdiction over Indian reservations. I believe ID is a PL 280 state. I think that also applies to county sheriffs for their role in law enforcement and traffic control.

So, if you are asking if a stater or a county sheriff can write up a tribal member for criminal trespass (or maybe a misdemeanor) or engage in traffic control, I am pretty sure the answer is yes.

I see what you mean. I however was referring to the United States ability to govern and regulate commerce within the states as stated: “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes”. As stated.

I read, understand, and appreciate your response. However, I read this and understand that the FS seems to have clear jurisdiction over the state of Idaho in these matters.

I honestly don’t think the problem is with who has the right to intervene. I think the problem is that those who have the right don’t have the ethical legitimacy to use the rights bestowed upon and act to stop it.

The Nez Perce are definitely a stand out as tribal wisdom and conservation behaviors go. They adhere to many old ways. It is too bad that some of the ‘powers that be’ can’t take a lesson in respecting resources.

If (based on the Constitution, article 1, section 8) the US government does have the power to regulate this highway on Native Reservation grounds, they are not upholding their duty (which is no surprise). The state of Idaho is breaking the law and I believe the state troopers who are escorting these SOB’s are also breaking their own state’s laws. I cannot find anything about it being legal that the troopers have any jurisdiction to break their own Transportation Departments issued permits.

You are also right below when you state that they should be taking these things through Canada. Perhaps Canada should improve their own highways if they want the economic advantages that the mega loads bring.

The 3 main avenues to get the mega loads through the Pacific Coast (Prince Rupert, Bella Coola, and Vancouver) are all narrow, winding roadways. Definitely not suitable for the likes of these giant machines. The road from Bella Coola is still partially dirt.

I can see why you have such distrust for our government, this issue is not winning them any favors in my book.

Zach
I don’t care if their Native Americans or what type of humans they are the answer is the same.
You benefit from the lands taken from the Native Americans therefore in the eyes of the law your as guilty as anyone, don’t matter if you now give a crap.

Ida, I am against this movement, because I believe that if they want it, it should be moved through Canada, and not add to the wear and tear on United States resources and it is not a so called easement, it is in fact a legal binding easement, as are all state and federal roads through the reservations. I know on the Flathead and Blackfoot reservations, there are some roads that don’t have legal easements covering them and the tribes close them at times, one is a main route to east Glacier.

The fact that the area is supposed to be protected by law gives some room, I think. This tar sands project is a nightmare. If the pipeline isn’t built, just think of transporting that gunk by rail and truck.

Ida, despite our objections, when it comes to fossil fuels, they will be transported one way or another, even you use fossil fuels, sitting here posting on this computer uses fossil fuels and in more ways that most even know.

BOISE – A federal judge has ruled in favor of the Nez Perce Tribe and Idaho Rivers United, ordering an injunction blocking further megaload transports on scenic U.S. Highway 12 through north-central Idaho until a corridor study and consultation with the tribe have been completed by the U.S. Forest Service.

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‎"At some point we must draw a line across the ground of our home and our being, drive a spear into the land and say to the bulldozers, earthmovers, government and corporations, “thus far and no further.” If we do not, we shall later feel, instead of pride, the regret of Thoreau, that good but overly-bookish man, who wrote, near the end of his life, “If I repent of anything it is likely to be my good behaviour."